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a public body is no longer required to provide public records that are posted on the public body's website

creation of a new category of FOIA requesters called "voluminous requesters"

allowing public bodies to charge additional fees to commercial requesters

A Public Body No Longer Must Provide Copies of Records Posted on That Public Body's Website

HB 3796 adds a new Section 8.5 to the FOIA providing that "a public body is not required to copy a public record that is published on the public body's website." Until now, a public body was required to provide FOIA requesters a copy of a public record even if that public record is readily available on the public body's website.

Now, a public body may simply notify a requester that the requested public record is online and direct the requester to the appropriate website. If a requester is unable to access the requested public record on the website, however, then the requester may resubmit the FOIA request with a statement that the requester is unable to reasonably access the record online. In such instances, the public body must provide a copy of the record to the requester.

This amendment could substantially reduce the workload of FOIA officers and other staff. Therefore, every public body should re-evaluate what public records it chooses to post on its website.

Voluminous Requesters

HB 3796 creates a new category of FOIA request called a "voluminous request" and establishes a procedure for responding to this type of request.

Under a new Subsection 2(h) of the FOIA, a "voluminous request" is defined by any of the following criteria:

a request that asks for more than five different categories of records

a combination of requests submitted within a period of 20 business days that ask for more than five different categories of records

a request that requires the compilation of more than 500 letter or legal-sized pages of public records, unless a single requested record exceeds 500 pages

If a public body receives a "voluminous request," then the public body may follow a new procedure instead of the procedures used for other types of requests. The public body must now respond to the requester within the usual time frame of five business days after receipt of the request, but then the public body may advise the requester:

that the public body is treating the request as a "voluminous request"

the reasons why the public body is treating the request as a "voluminous request"

that the requester has 10 business days to respond to the public body if the requester desires to amend the voluminous request so that it is no longer treated as a voluminous request

If the requester does not respond to the public body within 10 business days or amend the request within that time period, the public body then has five business days to either provide a response to the voluminous request or to request an additional 10 business days to respond to the voluminous request.

HB 3796 allows public bodies to charge voluminous requesters a fee to provide public records electronically. This fee is not authorized for other requesters. The fee is graduated, as follows:

$20 for up to 80 megabytes of data

$40 for more than 80 but not more than 160 megabytes of data

$100 for more than 160 megabytes of data

In addition, if a voluminous request is for public records that are in an electronic format other than PDF format (such as documents in Microsoft Word, Microsoft Excel, .jpg, or .tif formats), then the public body may charge the voluminous requester:

$20 for up to 2 megabytes of data

$40 for more than 2 but not more than 4 megabytes of data

$100 for more than 4 megabytes of data

If a public body charges fees to voluminous requesters, then the public body is required to provide the requester a full accounting of all the fees charged.

Fees Charged to Commercial Requesters

HB 3796 also expands the authority of a public body to charge a fee to a requester who files a request for a "commercial purpose." A request is for a commercial purpose if the requester intends to use any part of a public record or records, or information derived from public records, in any form for sale, resale, or solicitation or advertisement for sales or services.

Before HB 3796 became law, a public body was permitted to charge a commercial purpose requester up to $10 for each hour spent in excess of eight hours for searching for and retrieving a requested record. Public bodies were not permitted to charge this fee to recover its costs for the actual review and redaction of public records. Now, the FOIA allows a public body to include time spent "examining the record for necessary redactions" within the $10 per hour fee in excess of eight hours.